Why professional undertakings are landmines to lawyers

Many prospective homeowners today prefer buying property with finances from other sources due to the increasing cost of credit offered by banks. Many often pay a deposit and then complete paying the instalments as they get more income. Is it possible to have your lawyer guarantee on your behalf to clear the balance after paying a deposit to purchase a property?

Nelly, Nairobi 

Your lawyer can pledge, on your behalf, that the outstanding amount will be cleared within the agreed timelines. For instance, a client purchasing a house worth Sh10 million may pay a deposit of Sh2 million and their advocate promises, in writing, when the balance will be paid.

Such legal promises between lawyers representing the buyer and seller are known as professional undertakings which are often given by conveyancers (property lawyers) on behalf of their clients in the hope the transaction promises would be kept.

There are reported cases whereby the legal promises are breached following missteps of either the lawyer or the client. In most cases, lawyers are often victims when professional undertakings are not honoured and are forced to make the payments out of their pockets.

To property lawyers, failure to honour undertakings amounts to professional misconduct. The Advocates Disciplinary Committee may take disciplinary action against a lawyer who fails to honour the undertaking. Where an advocate gives a professional undertaking in the course of their practice, all the firm partners are responsible for its performance.

A partner will also remain responsible for the undertakings of the firm even after they leave the law firm or if the partnership is dissolved. However, no liability will be attached to an advocate who becomes a partner in a law firm after an undertaking is given. In daily legal practice, professional undertakings may be given orally or in writing but need not necessarily include the word ‘undertake’. The legal promises are given by lawyers to fast-track property transactions.

Practising lawyers are obligated by ethics to honour professional undertakings, even without legal contracts. In some cases, conveyancers may be subject to professional obligations even without making legal promises.

 For instance, if a client sends documents or money to an advocate subject to an express condition, the lawyer is subject to a professional obligation to return the documents or money if unwilling or unable to comply with the conditions. If documents or money are sent to a lawyer to be held to the sender’s order, the advocate must return them or the money to the sender on demand.

Harold Ayodo is an advocate of the High Court.